Effective Date: December 11, 2023
This Terms of Service Agreement is an agreement that sets forth the general terms and conditions for the services you purchase or use from OrderMyGear LLC (“OMG”) and its affiliate, Bright Stores LLC (“Bright Stores”) (collectively, “we”, “us”, “our” or “Provider”). The terms “we”, “us”, “our” and “Provider” used in this Terms of Service Agreement shall be construed in the collective and the singular, such that they apply to one or both of OMG and Bright Stores. For example, provisions that use the phrase “our Services” shall apply if you are using both of our Services (as defined below) or only using the Services of one of us.
Provider offers online software-as-a-service platforms (“SaaS Services”) that, among other things, permits users to create their own e-commerce stores (a “Store”) through which they can sell merchandise to consumers (we will call these sellers, “Merchants”).
These Terms of Service apply to the use of all of our services, including payment processing, data processing, design, customer services, technical support and our SaaS Services (collectively, the “Services”), as well as to those who are shopping in a Merchant’s Store powered by our SaaS Services (we’ll call you a “Customer”). If you are using our Services on behalf of a company, the Terms of Service apply to you, your company, and your company’s employees, representatives, successors, assigns, and any individuals who use your account(s) or credentials to access our Services.
If you have one or more separate agreements (referred to as a “Separate Merchant Agreement”) with one or both of us regarding our Services, the terms of any Separate Merchant Agreement will control over the Terms of Service if there is a conflict between the two agreements. These Terms of Service may also be incorporated by reference into a Separate Merchant Agreement.
If you have a Separate Merchant Agreement with Bright Stores LLC, that agreement is hereby amended such that this Terms of Service Agreement replaces and supersedes the Brightstores Terms and Conditions and the Data Processing Addendum at https://www.ordermygear.com/data-processing-addendum/ the (“DPA”) hereby supersedes and replaces any incorporation of the Brightstores Data Processing Addendum. If you are a Merchant, our processing of your data is subject to the terms of our DPA.
1. By using our Services, you accept the Terms of Service. We will change them occasionally, so make sure you stay up to date.
Make sure you read everything in the Terms of Service before you use our Services. You are legally bound by the Terms of Service each time you use our Services, even if the Terms of Service have been updated since you last read them. You agree that we may update the Terms of Service and that such update shall be effective upon your continued use of the Services.
Please do not use our Services or even browse our website or any store if you disagree with any part of the Terms of Service, including, for example:
– the waiver of your right to a jury trial or court resolution to a dispute
– the requirement to resolve disputes with us in arbitration
– the prohibition of class action lawsuits against us;
– limitations on our liability in the event of a claim or dispute; and
– the one (1) year time period you have to sue us under the Terms of Service.
We may update the Terms of Service at any time. When we make significant changes to the Terms of Service, we’ll update the date at the top of this page. Your continued use of our Services following the posting of an updated Terms of Service means that you accept and agree to the changes, so please check this page occasionally to make sure that you are up to date. A version of the Terms of Service becomes effective when it is first posted on our website. The current Terms of Service supersede anything we may have already discussed or agreed to with you about our Services, except to the extent you have a Separate Merchant Agreement with us.
2. By using our Services, you are warranting certain information about yourself and how you will act.
By using our Services (for example, our SaaS Services or a Store), you represent and warrant that:
– You are 18 years of age or older or the parent or guardian of a minor who you are authorizing to use our Services;
– You understand and agree that the Terms of Service are a legally binding agreement and the equivalent of a signed, written contract;
– If you are a representative of a business or company, that you are authorized to bind the business or company to the Terms of Service;
– You will provide only true, accurate, complete and current information to us;
– You are not a resident of the European Economic Area (EEA);
– You will abide by the Terms of Service; and
– You have established practices and policies to comply with the privacy and data security laws in each jurisdiction where your customers reside.
3. Minors under 18 are not allowed to use this website or browse stores.
Our services are not intended for use by minors. If you are under 18 years of age, you are not authorized to use our Services.
4. You do not own our website. Our website is our valuable intellectual property.
Our websites and our SaaS Services, all the content, code, data, works of authorship and materials related thereto, the look and feel, design and organization thereof, and the compilation of the material we provide is protected by U.S. and international trade secret, copyright, trademark, and other laws. We own, solely and exclusively, all rights, title and interest in and to our websites and SaaS Services, including, for example, all intellectual property and proprietary rights. Your use of our Services does not grant to you any ownership in any of it.
We own (or license the right to use) all trademarks, logos, service marks and trade names (collectively referred to as “our trademarks”) displayed on our website. To use any of our trademarks, you must have our written permission (or the written permission of the actual owner of the trademark, if they license it to us).
OMG will let you access and use our Services as long as you continue to comply with the Terms of Service. You agree not to remove, alter, or obscure any proprietary notices provided on our websites or in connection with the Services.
5. The Terms of Service grant OMG significant rights.
OMG has the following rights:
– To decline to offer you our Services for any reason or no reason, in our sole discretion.
– To suspend, limit access to, limit the use of, or terminate the Services or any user or account, in our sole discretion.
– To reject, cancel, interrupt, remove, or suspend any Store at any time and for any reason.
– To change or alter our websites, Services, or SaaS Services, including requiring payment for some or all uses of our Services, at any time.
– To review, modify, filter, disable, delete and remove any and all content and information from our Services or from a Store.
– To update and download automatically any software provided on or through our Services.
– To cooperate, in accordance with applicable law, with any law enforcement, court or government investigation or order or third party requesting or directing that we disclose content or information that you provide.
– To terminate, change, upgrade, suspend, limit, or discontinue any aspect of the Services, including, for example, content, features, hours of availability or equipment required for access.
You agree that the foregoing are rights of, but not obligations of, Provider and that Provider may, but is not obligated to, exercise any of these rights.
6. Provider is not responsible for any issues you may have with merchants, suppliers, manufacturers, decorators, or anyone else involved in the fulfillment of your order.
We enable Merchants to sell stuff online through Stores powered by our SaaS Services. Sales are between the Merchant and the Customer and not between Provider and the Customer. You agree that the Provider is not responsible for any issues or problems with the merchandise that is ordered from a Store.
You further agree that Provider is not responsible if disputes arise between Customers, Merchants, decorators, and/or suppliers. WHEN YOU USE OUR SERVICES, YOU RELEASE, WAIVE, AND DISCHARGE PROVIDER FROM CLAIMS, DAMAGES, AND DEMANDS OF EVERY KIND — KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, DISCLOSED OR UNDISCLOSED — RELATED TO THE MERCHANDISE ORDERED FROM A STORE OR OTHER DISPUTES AMONG MERCHANTS, SUPPLIERS, MANUFACTURERS, DECORATORS, AND CUSTOMERS.
7. Don’t do things that will violate law or the Terms of Service.
You may use our Services only for lawful purposes, and you are solely responsible for ensuring that you do in connection with your use of our Services. Provider does not review or take responsibility for any information that you, or other users, may create, transmit, post, store, distribute, display or present in connection with the Services.
You agree not to use our Services for any of these things:
– To breach any contract or legal duty you have toward anyone.
– To infringe or violate the trademarks, copyrights, or other intellectual property rights of Provider or any third-party.
– To offer any products or services that are illegal under any applicable laws or that violate any of our policies.
– To spam people or send them any other junk mail.
– To bypass any measures we’ve put in place to secure our Services.
– To use any kind of software or device (whether it’s manual or automated) to “crawl” or “spider” any part of our Services.
– To falsely state or imply that we sponsor, endorse, or are otherwise affiliated with you or your content. But keep in mind that if you are a merchant, you will not get in trouble for our logos we place at the bottom of your Stores.
– To violate or infringe anyone’s privacy rights.
– To use, modify, collect, publish, transmit, participate in the transfer, rental or sale of, create derivative works from, or in any way exploit any of our content, in whole or in part, for any purpose.
– To frame or use framing techniques to enclose our website or SaaS Services or any part thereof.
We may immediately remove materials that violate the prohibitions above, stop your use of the Services, and/or remove or disable your account, among other things. We may cooperate with any law enforcement authorities or court order or subpoena or third party requesting or directing us to disclose any information.
8. We may use a third party to process your payments and financial information. Provider is not liable for the third-party payment processor’s actions.
Your payments may be processed through Stripe, Inc. or through another third-party payment processor. Payments may not be processed for certain activities such as illegal or other prohibited activities.
Your relationship with a third-party payment processor is separate from your relationship with Provider and may be governed by the terms and conditions contained in the processor’s agreement. Provider is not responsible for the actions or omissions of any third-party payment processor.
If you are a merchant, you may be subject to additional terms and conditions provided by Stripe, Inc. as provided below.
9. Merchants are responsible to collect and remit any sales tax due to state and/or local governments.
As a Merchant, you might need to charge taxes on your sales, and collect, report, and remit taxes to state and/or local governments. We are not a marketplace facilitator for state sales tax purposes and are not required to nor does it collect and remit sales taxes on your behalf. You may be required to register your business with state or local federal tax authority to be authorized to conduct business in their jurisdictions and to remit sales tax. You should always check with a taxing authority or tax attorney or accountant to determine your sales and use tax collection obligations and to make sure you collect the correct amount of sales tax, and to make sure you file and remit taxes correctly.
10. Your personal information will be handled according to our Privacy Policy.
We agree to handle your personal information according to the terms of our Privacy Policy, which is incorporated into the Terms of Service by reference. You agree to our use of your personal information in accordance with our Privacy Policy, which may be updated from time to time.
11. If you are a customer shopping in a Store, these terms apply to you in addition to the Terms of Service.
– You’re charged as soon as you place an order. Even though your order may be delivered weeks or months after the fact, your credit card will be charged immediately.
– If you have questions about your order, contact the Merchant directly, and not the Provider. Contact information for the Merchant is available on the web page for the Store. The Merchant can answer questions, make changes, or issue credits or refunds for your order.
– The delivery date listed on a Store, if provided, is the Merchant’s estimate of when they will deliver your order — not a guarantee. Provider makes no representations or warranties in connection with any order.
12. Your use of any Services provided by third parties is separate of your use of our Services, so use them at your own risk.
Occasionally, as we think it may be helpful to you, we may suggest or incorporate third party services (“Third-Party Services“) provided by third parties (“Third-Party Providers“) into our services. For example, we may connect you with shipping, payment, or fulfillment services via Third-Party Providers. Sometimes we will collect a fee from these Third-Party Providers in connection with their Third-Party Services.
We cannot and do not make any promises, representations, or warranties about the Third-Party Services. You acknowledge that Provider has no control over Third-Party Providers. YOU HEREBY WAIVE AND RELEASE ANY CLAIMS OR LIABILITIES YOU INCUR IN CONNECTION WITH THE THIRD PARTY SERVICES AS WELL AS TO DEFEND AND INDEMNIFY US FOR ANY SUCH CLAIMS OR LIABILITIES CAUSED IN WHOLE OR IN PART BY A THIRD-PARTY PROVIDER ON YOUR BEHALF THAT ARE ASSERTED AGAINST PROVIDER.
If you use a Third-Party Service, you grant us permission to allow the applicable Third-Party Provider to access your data and, if applicable, your Customers’ data and to take any other actions as required for the coordination of the Third-Party Services with our Services. Any exchange of data or other interaction between you and the Third-Party Provider is solely between you and the Third-Party Provider. We are not responsible for any disclosure, modification or deletion of your data or your content, or for any corresponding losses or damages you may suffer, as a result of access to or use of your data or your content by a Third-Party Provider.
13. You must abide by laws that control what sales can take place with persons outside of the U.S.
United States export control laws may govern your use of our Services regardless of whether you actually reside in the U.S.
You may not use our Services for any purpose that violates export control laws, which may include the sale of products that may be legal to sell in the U.S., but illegal to export. You may not use our Services to offer or provide Services to end customers with whom U.S. citizens may not do business.
Additional information about U.S. export laws may be obtained from the United States government’s portal to exporting and trade services at the following website: https://www.export.gov/Legal-Considerations.
14. If you come to our website from another website, or if you click any links on our website to another website, you do so at your own risk.
You may be able to link from our website or Services to a third-party website and third-party websites may link to our website or Services (in both cases, referred to as a “linked site”). Your use of linked sites is completely at your own risk. You acknowledge and agree that we have no responsibility or liability for what you see on or obtain through a linked site. We do not know if the content of any linked site is accurate, compliant with state or federal law, or compliant with copyright or other intellectual property laws.
15. The Terms of Service will apply indefinitely.
All provisions of the Terms of Service survive if you stop using our Services and/or if you terminate your account, including, for example, our rights regarding any content you’ve already submitted to us. Also, everything that you have represented to us in the Terms of Service will survive indefinitely.
16. If you do something wrong and it causes us problems, you will have to pay us (that is, indemnify us) for our trouble.
To the maximum extent permitted by law, you agree to indemnify and hold harmless Provider, its affiliates, officers, members, owners, directors, managers, employees, agents, and representatives (collectively referred to as “Related Parties”) from and against any and all claims, damages, obligations, losses, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees), arising out of or related in any way to (a) your use of the Services, (b) your submission, posting, transmittal, transfer (whether intentional or unintentional), display, storage, distribution, removal, or any other use of any personal information pertaining to yourself or another, (c) your alleged violation of the Terms of Service, (d) your alleged violation of any law or regulation, including, without limitation, any anti-spam laws of any applicable jurisdiction, (e) your alleged violation of any intellectual property right, including, without limitation, copyright, patent, trademark or trade secret, (f) any claim that your information or any other content by you caused damage to a third party, (g) your alleged misuse of customer information, (h) your alleged failure to secure customer information in accordance with applicable law and any other action you take in violation of privacy and data security laws applicable to the situation, (i) your use of third party services or your relationship with a third party provider or (j) your alleged failure to collect, remit, and/or report the appropriate amount of sales or use tax (including any penalties and interest) to any state or local government. This indemnification obligation will survive the Terms of Service and your use of our services. OMG reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with OMG’s defense of such claim.
17. WE DISCLAIM ANY WARRANTIES. YOUR USE OF OUR SERVICES AND OUR CONTENT IS AT YOUR OWN RISK.
You agree to assume all responsibility and risk for your use of our website, our Services, and our content. To the fullest extent permissible under applicable law, Provider and its related parties do not make and hereby disclaim any express or implied warranties or representations whatsoever with respect to our website, our Services, or our content, including but not limited to any warranties of merchantability, non-infringement, and fitness for particular purpose.
We do not make any representation or warranty with respect to the accuracy, reliability, timeliness, or completeness of our website, our Services, or our content or that our website, our Services or our content is non-defamatory, non-infringing or otherwise lawful. Provider does not warrant that the functions performed by our website, our Services, or our content will be uninterrupted, timely, secure or error-free, or that defects in our website, our Services, or our content will be corrected. Provider does not guarantee or warrant that the files available for downloading will be free from infection by software viruses or other harmful computer code, files, or programs. Our website, our Services, and our content are provided on an “as is,” “where is, “ “where available” and “as available” basis. You acknowledge that any reliance on or use of our website, our Services, and our content is at your sole risk.
To the fullest extent provided by law, we will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses, or other technologically harmful material that may infect your computer equipment, computer programs, data, or other proprietary material due to your use of our website, any downloads from our website or through our Services, or any other of our Services.
18. OUR LIABILITY TO YOU IS LIMITED. THAT MEANS THAT IF YOU SUFFER LOSSES, WE DO NOT HAVE TO COMPENSATE YOU FOR THEM.
TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL PROVIDER BE LIABLE TO ANY PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR DAMAGES RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION, EVEN IF FORESEEABLE, ARISING OUT OF OR IN CONNECTION WITH THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE SERVICES, ANY THIRD PARTY SERVICES OR THIRD PARTY PROVIDER, ANY WEBSITE LINKED TO OUR WEBSITE, OR OUR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT PROVIDER OR A RELATED PARTY IS AWARE OF OR OF ADVISED THE POSSIBILITY OF SUCH DAMAGES.
YOU SPECIFICALLY AGREE THAT PROVIDER WILL NOT BE LIABLE FOR ANY USERS’ CONTENT OR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF A THIRD PARTY AND THAT YOU ASSUME THE FULL RISK OF HARM OR DAMAGE FROM THE FOREGOING.
IF YOU ARE A CUSTOMER, THE TOTAL DOLLAR AMOUNT OF PROVIDER’S LIABILITY TO YOU SHALL NOT UNDER ANY CIRCUMSTANCES EXCEED TEN U.S. DOLLARS ($10.00).
19. YOU AGREE TO RESOLVE DISPUTES IN MANDATORY ARBITRATION IN DALLAS, TEXAS, AND NOT BY A COURT OR BY A JURY.
Other than claims to collect an amount due for providing the Services or disputes before an administrative agency (e.g., inter-related parties review of a patent before the United States Patent and Trademark Office), any dispute, controversy or claim arising out of or related in any manner to the Services which cannot be amicably resolved by the Parties shall be solely and finally settled by arbitration administered by the American Arbitration Association in accordance with its commercial arbitration rules. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof in Dallas, Texas. The arbitration shall take place before a panel of one (1) arbitrator sitting in Dallas, Texas. The language of the arbitration shall be English. The arbitrator will be bound to adjudicate all disputes in accordance with the laws of the State of Texas. The decision of the arbitrator shall be in writing with written findings of fact and shall be final and binding on the parties. Each party shall bear its own costs relating to the arbitration proceedings irrespective of its outcome. Any claim shall be brought individually on behalf of the person or entity seeking relief, not on behalf of a class or other persons or entities not participating in the arbitration and shall not be consolidated with the claim of any person who is not asserting a claim arising under or relating to this contract. A party may seek a preliminary injunction or other injunctive relief in any court of competent jurisdiction in Dallas, Texas if in its reasonable judgment such action is necessary to avoid irreparable harm. The arbitrator will make the initial determination as to whether any claim is subject to arbitration. Notwithstanding any language to the contrary in this agreement, the parties hereby agree that any award issued by the arbitrator (the Underlying Award”) may be appealed pursuant to the AAA’s Optional Appellate Arbitration Rules (“Appellate Rules”); that the Underlying Award rendered by the arbitrator(s) shall, at a minimum, be a reasoned award; and that the Underlying Award shall not be considered final until after the time for filing the notice of appeal pursuant to the Appellate Rules has expired. Appeals must be initiated within thirty (30) days of receipt of an Underlying Award, as defined by Rule A-3 of the Appellate Rules, by filing a Notice of Appeal with any AAA office. Following the appeal process the decision rendered by the appeal tribunal may be entered in any court having jurisdiction thereof.
20. The Terms of Service are governed by Texas law.
The Terms of Service, the Privacy Policy, and the relationship between you and Provider shall be governed by and construed in accordance with the laws of the State of Texas, without regard to its conflict of law provisions.
21. If a court finds part of the Terms of Service invalid, it won’t invalidate all of the Terms of Service.
If any provision of the Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the tribunal should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms of Service remain in full force and effect.
22. You have one year to sue us if something goes wrong.
Any cause of action you may have with respect to your use of our Services must be commenced within one (1) year after the claim or cause of action arises.
23. No Other Agreements.
The Terms of Service supersedes all prior or contemporaneous communications and proposals, whether electronic, oral, or written, between you and Provider with respect to the Services, unless an agreement specifically provides that it is not superseded by the Terms of Service and said agreement is in writing and signed by both parties.
However, if you are a merchant and you have a Separate Merchant Agreement with us regarding our Services, the terms of that Separate Merchant Agreement will control over the Terms of Service, if there is a conflict.
Upon termination, those provisions of the Terms of Service that expressly or by their nature survive will continue in full force and effect.
24. You can’t substitute anyone else in your place as a party to the Terms of Service without permission, but we can.
You may not assign the Terms of Service or delegate your obligations under the Terms of Service, or any part of the Terms of Service, without the express written consent of the Provider. You agree that the Provider may assign, transfer, or delegate any of its rights or obligations under the Terms of Service at any time and for any reason without prior notice or your consent.
25. If you suspect someone is infringing your intellectual property, please let us know.
We take intellectual property rights seriously and will investigate reasonable issues that are brought to its attention. If you believe that our Services are being used to infringe your intellectual property, then you may send us a takedown request. We will not be able to properly review a request unless it includes all of the following:
– Your physical or electronic signature.
– The registration number(s) for the intellectual property if applicable.
– The countries or territory in which the trademark is registered.
– An identification of intellectual property. For instance, is the trademark a word mark, design mark or combination?
– For a trademark, a list of the goods and/or services for which the trademark is registered and the length of time you have been using the trademark on those goods and services.
– A statement of why you believe your rights have been infringed.
– Sufficient identification of the material you believe to be infringing.
– Your name, postal address, telephone number, and, if available, email address.
– A statement that the information in the written notice is accurate.
– A statement, under penalty of perjury, that you are authorized to act on behalf of the trademark owner.
If you have a legitimate claim, then the allegedly infringing material will be taken down. If action is taken, we will forward the claim to the Merchant along with notice of what we did.
26. If you suspect someone is infringing your copyright, please let us know.
We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from our website infringe your copyright, you may request our removal of those materials (or access to them) by submitting written notification to our copyright agent designated below. In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), the written notice must include substantially the following:
– Your physical or electronic signature.
– Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on our website, a representative list of such works.
– Sufficient identification of the material you believe to be infringing.
– Your name, postal address, telephone number, and, if available, email address.
– A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.
– A statement that the information in the written notice is accurate.
– A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
Our designated copyright agent to receive these notices is:
Copyright Agent
OrderMyGear LLC
2211 Commerce St.
Dallas, TX 75201
copyright@ordermygear.com
If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your notice may not be effective.
Please be aware that if you knowingly materially misrepresent that material or activity on our website is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
27. If you are not a Customer, the special terms in this Section apply to you in addition to the rest of the Terms of Service.
A. PRIVACY PRACTICES.
You must establish and agree to maintain and adhere to all laws applicable to any data collected in connection with the Services and are responsible for including your own privacy policy pursuant to all applicable laws and regulations.
B. STORE OPERATION AND INTELLECTUAL PROPERTY.
You are responsible for all activities that occur in, on, or through any of your accounts that access the Services. It is your responsibility to secure and protect your account and to manage the users within your account.
You must sufficiently monitor all of your Stores. Except to the extent you separately engage Providers to conduct fulfillment services, Merchants are responsible for fulfilling their customers’ orders as well as any other obligations after the order has been fulfilled, such as returns, refunds, or the handling of defective products. We are not involved in fulfillment or delivery of any goods or services purchased through our Services, except to the extent we have been separately engaged to provide these services for you.
You own and are responsible for the stuff you post, create, or put up for sale, including, for example, product artwork, images, logos, and text (collectively referred to as “your content”). Provider is not liable for any errors or omissions in any of your content.
Provider does not own your content, but we may need to use your content to provide our Services. So, to the extent that you post or otherwise provide Provider with your content, including photographs, audio, text, graphics or other works of authorship, on or through the website or your account, you grant to us the right (which is a non-exclusive, fully paid up, royalty free, irrevocable, unlimited, worldwide license) to reproduce, display, perform, use and create derivative works from such content.
You promise that if we use your content, we’re not violating anyone else’s rights, including, for example, any trademarks, publicity rights, contract rights, or any other intellectual property or proprietary rights.
Any royalties or licensing on your content are your responsibility. You will pay all royalties and other amounts owed to any person or entity based on your content, or on Provider’s use or hosting of that content.
C. PAYMENT FOR PURCHASES AND OUR FEES.
You agree to pay all amounts due for Services according to the terms posted online on our website or otherwise communicated to you in writing. The fees charged by Provider shall be deemed to have been earned on the date payment is due and shall be non-refundable. We reserve the right to change our prices and fees at any time, and such changes will be posted online on the website or otherwise communicated to you and shall be effective immediately upon no further notice to you.
We are not responsible for ensuring that the information you provide us for your payouts (for example, ACH account numbers) is accurate or that your payouts are transferred successfully or timely. You are liable for any issues that arise due to your (or one of your employees’) provision of invalid information for payouts.
The fees you will owe in connection with payment processing will be posted in your account or otherwise communicated to you, and by using our services you agree to pay those fees. We reserve the right to change the payout schedule or suspend deposits if we determine it’s necessary due to fraud, excessive disputes, or other suspicious activity.
You authorize us to direct a third-party payment processor to: (a) receive, hold, and disburse funds, (b) issue charges, refunds, and deposits, and (c) otherwise handle funds on your behalf. For example, if you refund a customer’s order, we may notify the third-party payment processor to issue a credit to that customer’s card. You agree that you are not entitled to interest or other compensation associated with funds held on your behalf as you use our services.
Our current fees are listed in your account. If our fees ever change, we’ll let you know by email or posting a notice on your account. Funds are collected by third party payment processors. Each third-party payment processor is its own company, and we are not responsible for its performance.
We or the third-party payment processor may subtract our fees and any other amounts you owe to the Provider before depositing the proceeds of a store to your bank account. If you are in a country that is not supported by the third-party payment processor or we are unable to subtract fees for any reason, you are responsible for paying all fees billed to your account.
However, there are exceptions. We may charge you directly for some fees. In these cases, by default, we will debit these fees from the payment method currently on file. Most often these are non-transactional fees, such as store-building fees.
If at any point the amount of fees you owe results in a negative balance in your account, we may limit, suspend, or terminate your account until such fees are paid.
You’re responsible for paying any additional fees or taxes associated with your use of our services.
D. CHARGEBACKS.
You are responsible for all transactions involving your store(s), including chargebacks from your customers. A chargeback is typically caused by a customer disputing a charge that appears on their bill. You are liable to us for all chargeback amounts and are responsible for contesting chargebacks. We will recover chargeback amounts, plus any applicable fees, expenses, or fines, by instructing our third-party payment processor to withhold from your next payout or to debit your account on file. If we are unable to recover funds, you agree to pay us the full amount of the chargeback immediately upon demand. You agree to pay us for all costs, expenses, and attorneys’ fees that we incur collecting chargeback amounts from you.
If we determine that a chargeback is likely with respect to any transaction, you agree that we may instruct our third-party payment processor to withhold the amount from those transactions (plus chargeback fees) from your payouts unless and until the matter is otherwise resolved. If we or our third-party payment processor determine that you are incurring excessive chargebacks, we may limit, suspend, or terminate your account.
E. ACCOUNT WITH THIRD PARTY PAYMENT PROCESSOR.
Merchants may be required to establish an account with Stripe, Inc. (or whichever third-party payment processor we have engaged instead of Stripe, Inc.). Merchants must maintain your account with, and abide by, any agreements they have with Stripe, Inc. (or whichever third-party payment processor we have engaged instead of Stripe, Inc.) for so long as they remain a Merchant. For terms and conditions that may be applicable to your relationship with Stripe, Inc., see https://stripe.com/us/connect-account/legal.
F. SENDING MARKETING EMAILS TO CUSTOMERS.
You may use our services to send emails to market your goods and services, but only if you comply with our Terms of Service and Privacy Policy and all applicable laws including, but not limited to, the CAN-SPAM Act and Canada’s Anti-Spam Law. You must keep adequate and verifiable records to prove that your marketing is strictly permission-based. You are solely responsible for the transmission of all such marketing communications related to your store and your use of our Services. We reserve the right to suspend or terminate our services to you in the event we receive, in our sole and exclusive discretion, an excessive number of complaints related to your marketing communications, whether such complaints are made by parties who “opt-in” or otherwise.
G. YOUR RELATIONSHIP WITH US.
You and Provider are independent contractors, and the Terms of Service are not intended to create, and do not create any agency, partnership, joint venture, employee-employer, or franchisor-franchisee relationship.
H. ACCOUNT AND STORE TERMINATION.
We may terminate or suspend your account with us, the Services, and any Stores, at any time.
I. PERSONS WORKING ON BEHALF OF A COMPANY
If you create or administer an account on our website for your employer or for another company you legally represent, you agree to abide by all of the terms and conditions provided in the Terms of Service with respect to Merchants.
J. LIMITATION ON LIABILITY APPLICABLE TO MERCHANTS
In addition to the limitations set forth above, if you are a merchant, in no event shall the total dollar amount of Provider’s liability for damages to you exceed the lesser of $10,000 or the amount of fees incurred by you for the Services in the last twelve (12) months.
K. CALIFORNIA PROPOSITION 65 WARNINGS
You are responsible for ensuring that all necessary consumer warnings, including the warnings under California’s Proposition 65 regarding exposure to harmful chemicals, are properly made for the stuff you sell in your stores. Proposition 65 generally provides that warnings for products sold online should be made both online and on the product itself. We are not responsible for any issues with deficient consumer warnings, and you agree to defend and indemnify us for any losses resulting from such issues.
